Barnett v. Gladden

• Decision Date: 25 March 1964
• Citation: 390 P.2d 614,237 Or. 76
• Parties: John H. BARNETT, Appellant, v. Clarence T. GLADDEN, Warden, Oregon State Penitentiary, Respondent.
• Court: Oregon Supreme Court

Page 614

390 P.2d 614

237 Or. 76

John H. BARNETT, Appellant, v. Clarence T. GLADDEN, Warden, Oregon State Penitentiary, Respondent.

Supreme Court of Oregon, In Banc.

Argued and Submitted Dec. 6, 1962.

Reargued July 2, 1963.

Decided March 25, 1964.

Ralph W. G. Wyckoff, Salem, argued and reargued the cause and filed briefs for appellant.

Harold W. Adams, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief was Robert Y. Thornton, Atty. Gen., Salem. Respondent made no oral reargument, but Robert Y. Thornton, Salem, filed a supplemental brief.

Orval Etter, Eugene, argued the cause on reargument and filed a brief for League of Oregon Cities as amicus curiae. With him on the brief were City Attys. Carrell F. Bradley, Hillsboro, William A. Mansfield, Medford, Alexander G. Brown and Philip T. Abraham, Portland, Chris J. Kowitz and William J. Juza, Salem, and Robert B. Carmichael, Springfield.

Before McALLISTER, C. J., and ROSSMAN, PERRY, SLOAN, O'CONNELL, GOODWIN and DENECKE, JJ.

PERRY, Justice.

This is an appeal by the petitioner from the denial of the relief sought in a post-conviction hearing as provided in ORS 138.510 et seq.

The record in this proceeding discloses that on March 21, 1960, the petitioner was indicted in Umatilla County, Oregon. The charging part of the indictment reads as follows:

'The said John H. Barnett, on the 13th day of March, A.D., 1960, in the County of Umatilla and State of Oregon, then and there being, and then and there being a male person over the age of 16 years, to-wit, 62 years of age, did then and there wilfully, wrongfully, unlawfully and feloniously atttempt to induce and entice into a place of concealment, to-wit, an apartment in the City of Pendleton, in said County and State, a female child, to-wit, Jean Corwin, under the age of 16 years, to-wit, of the age of 14 years, with the intent and purpose to commit with and upon such child a sex act, to-wit, sexual intercourse, said act of defendant being contrary to the statute in such cases made and provided, and against the peace and dignity of the state of Oregon.'

Counsel was appointed and the petitioner entered a plea of former judgment of conviction of the crime charged. The trial court held the plea to be without merit and petitioner thereupon entered a plea of not guilty. Subsequently petitioner withdrew his plea of not guilty and entered a plea of guilty to the crime charged in the indictment.

Thereafter, the trial court directed that a psychiatric examination of the defendant be made before sentence was imposed. The examination of the petitioner, made at the Eastern Oregon State Hospital. disclosed that petitioner 'has a mental or emotional disturbance, deficiency or condition * * * to a degree rendering the person a menace to the health and safety of others.' The trial court thereupon sentenced the petitioner to life imprisonment. No appeal was taken from the judgment entered.

In this proceeding, the petitioner first contends that the indictment to which he entered his plea of guilty failed to state a crime, and, therefore, the court was without jurisdiction.

ORS 167.045 reads as follows:

'(1) No person over the age of 16 years shall wilfully and wrongfully and forcibly take from any place, or wilfully and wrongfully and forcibly detain in any place, or wilfully and wrongfully induce or entice into any place of concealment or upon any type of conveyance, any child under the age of 16 years with the intent to commit with or upon such child any act punishable under ORS 163.210, 163.220, 163.270, 167.035 or 167.040.'

It is the contention of the petitioner that the indictment is faulty in that it fails to allege the specific acts of inducement used by petitioner.

The specific acts or circumstances by which a crime is committed are generally not necessary to a valid indictment, it being sufficient if the offense is charged in the words of the statute. State v. Smith, 182 Or. 497, 188 P.2d 998.

It is only when the doing of certain particular acts are made necessary by the terms of the statute to constitute the crime that the particular acts must be alleged. Merrill v. Gladden, 216 Or. 460, 337 P.2d 774.

The statute under which petitioner was charged does not require the use of any particular means or method of inducement in committing the crime. The indictment is, therefore, sufficient.

Also, it is only when an indictment fails to allege any crime that a court is without jurisdiction. The fact that an indictment may allege a conclusion and not particular facts is not grounds for post-conviction hearing relief. State v. Cloran, 233 Or. 400, 374 P.2d 748, 377 P.2d 911, 378 P.2d 961; Smallman v. Gladden, 206 Or. 262, 291 P.2d 749.

The petitioner also contends that his sentence to life imprisonment for attempt to commit the crime charged is not authorized by law.

Had he committed the crime charged the maximum punishment authorized by law is life imprisonment. ORS 167.045.

For attempts to commit crimes, ORS 161.090 provides the punishment as follows:

'(1) If the crime so attempted is punishable by imprisonment in the penitentiary or county jail, the punishment for the attempt shall be by like imprisonment for a term not more than half the longest period prescribed as a punishment for the crime but in no event more than 10 years. If the crime so attempted is punishable by death, or imprisonment for life, the punishment for the attempt shall be by imprisonment in the penitentiary for not more than 10 years.'

The petitioner contends, therefor, that his term could not exceed 10 years.

In the matter of sex crimes, the legislature in ORS 137.111 provided:

'After the presentence hearing and upon the consideration of the psychiatric report required by ORS 137.112 to 137.115, the court may, in its discretion, in lieu of any other sentence authorized by law for such crime, sentence any person convicted under ORS 163.210, 163.220, 163.270, 167.035, 167.040 or 167.045 to an indeterminate term not exceeding the natural life of such person if:

'(1) The offense involved a child under the age of 16 years; and

'(2) The court finds that such person has a mental or emotional disturbance, deficiency or condition predisposing him to the commission of any crime punishable under ORS 163.210, 163.220, 163.270, 167.035, 167.040 or 167.045 to a degree rendering the person a menace to the health or safety of others.'

In our opinion, an attempt to commit a sex crime falls within the ambit of legislative intention expressed in ORS 137.111, as fully as if the crime denounced had been completed. The purpose of the statute is to provide for the rehabilitation of a sex offender who has disclosed a tendency to be a menace to society. Jensen v. Gladden, 233 Or. 439, 378 P.2d 950.

The petitioner also contends that his federal and state constitutional rights were violated in that he was twice tried and convicted of the same offense.

It is unnecessary for us to set forth the basis of petitioner's contention for, as previously stated, the record in this proceeding discloses that after the trial court for Umatilla County ruled that petitioner's plea of prior conviction for the same offense was not well-taken and petitioner had entered a plea of not guilty, he thereafter entered a plea of guilty to the crime charged in the indictment.

It is well-established, that the defense of former conviction or acquittal for the same offense is a personal privilege that may be waived by a defendant. State v. Monk, 199 Or. 165, 260 P.2d 474; Gue v. City of Eugene, 53 Or. 282, 100 P. 254; State v. Houghton, 45 Or. 110, 75 P. 887; State v. Childers, 32 Or. 119, 49 P. 801; Brady v. United States, 8 Cir., 24 F.2d 399, and cases cited therein.

Mr. Justice Rand stated the rule in State v. Lewis, 113 Or. 359, 361, 230 P. 543, 544, 232 P. 1013:

'* * * where a defendant in a criminal action pleads not guilty or pleads a former conviction or acquittal an issue of fact arises. Section 1509, Or.L. [now ORS 136.010]. But where a defendant enters a plea of guilty, no issue of fact can arise, since by pleading guilty of the crime charged in the indictment the defendant admits every fact alleged in the indictment. A plea of guilty is a confession of guilt and is equivalent to a conviction, and leaves nothing for a court to do, except to pronounce sentence, the same as it would be required to do upon a verdict of guilty. 'Where the statute permits the plea of guilty and such a plea is accepted and entered by the court in a criminal case, it is the highest kind of conviction of which the case admits.' 16 C.J. 403, note 'c'.' (Emphasis ours.)

It is equally well-established, that a plea of guilty, given in compliance with the requirements of due process, waives all defenses that could have been made at the trial of the cause, since, '* * * by a plea of guilty, all averments of fact are admitted, all defects not jurisdictional are cured, all defenses are waived and the prosecution is relieved from the duty of proving any facts.' Berg v. United States, 9 Cir., 176 F.2d 122, 125, cert. denied 338 U.S. 876, 70 S.Ct. 137, 94 L.Ed. 537; 22 C.J.S. Criminal Law § 277, p. 712.

In accord with the above rules of law, the courts hold that, where a plea of former jeopardy and also a plea of not guilty is entered by a defendant and he subsequently enters a plea of guilty, the defense of double jeopardy is waived even though not withdrawn. People v. Strickler, 167 Cal. 627, 140 P. 270; State v. Carte, 157 Kan. 139, 138 P.2d 429; State v. Carte, 157 Kan. 673, 143 P.2d 774; Lawton v. Hand, 186 Kan. 385, 350 P.2d 28; Rex v. Pope, 7 Alberta L Rep 169, 15 Dominion L Rep 664, 26 West L Rep 659, 5 West W Rep 1070, 22 Can Crim Cas 327.

In State v. Carte, 157 Kan. 673, 677, 143 P.2d 774, 776, the court stated:

'It is always well to bear in mind the clear distinction between the subjects of sentence and former jeopardy. Judgment of sentence can be pronounced...